The Right to be Obnoxious

By Phil Olbrechts

Ogden Murphy Wallace, PLLC

Published in CityVision Magazine, March/April 2010

Does the First Amendment and the Open Public Meetings Act (“OPMA”) protect obnoxious people? The short answer is that they do protect obnoxious people, but not really obnoxious people. That’s why obnoxious people are free to call you short-sighted and over your head at City Council meetings, but they can’t make disparaging remarks about the size of your nose or your choice of wardrobe. So as you pack your Council chambers to overflowing with your stellar public engagement program, here are the boundaries on how “engaged” your audience can truly be:

1. The Right to Speak. A common misperception is that everyone can talk at city council meetings. Not true. People have a right to attend, but they don’t have a right to speak unless you invite them to speak (or there’s a mandatory public hearing). The citizen comment period portion of the agenda is the invitation that most city councils do extend to their citizens. If you put that on the agenda, the public can say their peace on anything related to City business. It’s a time honored tradition in this Country to denigrate and humiliate those who volunteer to serve their communities, so if you let the public speak they get to make fun of you. But the comments have to be related to City business, so commenting on the size of your nose or your wardrobe doesn’t have to be tolerated. If you don’t want people to talk, just keep the citizen comment period off the agenda. Then you’re free to toss out anyone who tries to say something during your meeting, and they in turn can toss you out at the next election.

2. The Right to Attend. Obnoxious people have a right to attend City meetings, really obnoxious people do not. The OPMA gives every citizen the right to attend Council meetings and any other meeting held by a “governing body,” which includes all decision- and policy-making bodies such as planning commissions, civil service commissions and parks boards. However, the OPMA recognizes that people disrupting meetings can be “removed.” Disrupting a lawful public assembly is not protected by the First Amendment and constitutes disorderly conduct, a crime. Police can haul people away for committing crimes, but you cannot. So if that citizen making fun of your nose makes loud honking noises every time you speak and simply will not stop, call in the police. Just be very sure that the really obnoxious person is being disorderly. Hauling people away for the wrong reasons can lead to nasty lawsuits involving assault, false imprisonment, federal civil rights violations, and intentional or negligent infliction of emotional distress. It also creates a situation where the police are put under pressure from their civilian superiors to take action against their own better judgment. Calling in the troops should always be a last resort.

3. The Right to Hurt Your Feelings. The public does have the right to attack your skills and accomplishments (or lack thereof) as a public servant. They can call you unqualified and short-sighted, but any examples they use better be accurate. Elected and appointed officials are generally fair game for any opinions and nasty comments, so long as any factual allegations are not made in reckless disregard of the truth (called defamation in this state, slander in others). For example, it’s fair game for a citizen to comment that the quality of your contribution to council meetings leads him to believe that you must be drunk. If said in a facetious manner, this is just opinion. However, if the citizen states as a matter of fact that you show up at council meetings drunk and it turns out later that his only evidence is the jewels of stupidity that drop from your mouth on a regular basis, that’s probably defamation. Defamatory comments are not protected by the First Amendment, so you can stop them from being made at a Council meeting. The presiding officer (the Mayor in Council meetings) should simply ask “what evidence do you have that Councilmember Smith appears at Council meetings drunk?” If no intelligible answer is forthcoming, the officer can shut that line of discussion down. If you are the target of defamatory comments, you have a cause of action for monetary damages against the defamer. Keep in mind, however, that you need to prove some damage in order to reap some compensation. If nobody takes the defamer seriously (maybe he was the one drunk), damages may be minimal.

Although citizens have a right to be offensive, they can’t be really offensive. There are some limits to personal attacks, what the courts call “fighting words.” “Fighting words” are those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The courts have not shown much consistency in what constitutes a “fighting word,” so it’s best to err on the side of caution when deciding whether to stop a personal attack on that basis. This is why facetiously exclaiming that a council member must be drunk should be tolerated. Personal insults should be directed specifically at an individual and highly inflammatory to be excluded. “You, sir, are a LIAR and a scoundrel” may qualify as fighting words (even though it’s the best entertainment all night), although it could get through rephrased as “I have trouble believing you, given the deliberate inaccuracies of your prior comments.” Comments like “I’ve taped a bomb to the bottom of your chairs” would qualify as something inciting an immediate breach of the peace, but are highly appreciated if true.

Conclusion: I have liberally used the term “really” in this article to emphasize that First Amendment rights are often a matter of degree, and a subjective one at that. A little common sense and a respect for the right of citizens to express their opinions will be enough to guide you through most situations involving obnoxious people. Always err on the side of letting comments come in. Only forcibly remove a person when that person is making it very difficult to hold your meeting. Following these basic guidelines will keep you out of trouble and honor the First Amendment as intended by our constitution.